In
addition, USA filed a Third-Party Complaint against Roman
seeking indemnification and apportionment of any adverse
judgment in the action against Szydlo. [Dkt. No. 21.] Roman
moved to dismiss the Third-Party Complaint [Dkt. No. 27] and
USA opposed the motion [Dkt. No. 32].

The
Court discusses each Motion to Dismiss in turn. For the
reasons that follow, USA's Motion to Dismiss Is DENIED,
and Roman's Motion to Dismiss the Third-Party Complaint
is DENIED.

I.
USA's Motion to Dismiss Szydlo's Claims

a.
Factual Background

Szydlo
filed a Motion to Amend the Complaint on July 18, 2016 [Dkt.
No. 24], and filed an Amended Complaint on August 11, 2016,
one day after USA and Roman Landscaping filed their Motions
to Dismiss. [Dkt. Nos. 27 (Roman's Motion), 28 (USA's
Motion), 31 (Amended Complaint).] In response, the Court
issued an Order granting Plaintiff's Motion to Amend, and
stating “The Court will consider the pending motions to
dismiss in light of the Amended Complaint.” [Dkt. No.
29.]

On a
motion to dismiss for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1), the Court
accepts as true “all material factual allegations in
the complaint.” Shipping Fin. Servs. Corp. v.
Drakos, 140 F.3d 129, 131 (2d Cir. 1998). Unlike a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), the Court also has “the power and
obligation” to consider “evidence outside the
pleadings, such as affidavits, ” to resolve questions
of fact and determine whether subject matter jurisdiction
exists. APWU v. Potter, 343 F.3d 619, 627 (2d Cir.
2003); see also Makarova v. U.S., 201 F.3d 110, 113
(2d Cir. 2000) (stating Courts refer to evidence outside the
pleadings on a motion to dismiss for lack of subject matter
jurisdiction). Accordingly, the following facts are taken
from the material facts alleged in Szydlo's Amended
Complaint and the exhibits to the parties' briefing
regarding dismissal.

Throughout
the relevant time period, USA had possession and control of
certain property in Gales Ferry, Connecticut. [Dkt. No. 31
(Amended Complaint) at 1-2.] On that property was a post
office open to the public (the “Post Office”), as
well as adjacent sidewalks and parking areas. Id. at
2.

Pursuant
to a contract between USA and Roman, Roman “was
responsible . . . for the winter maintenance of the
sidewalks/walkways and parking areas adjacent to the post
office, including the sidewalk/walkway that is the subject of
this lawsuit.” Id. at 4. The contract between
USA and Roman states, in relevant part:

The supplier will provide all necessary labor, equipment,
materials, supplies and supervision to provide snow services
as listed herein.

If the accumulation of snow exceeds two (2) inches, the
supplier shall commence the snow operation without further
notification, in accordance with the schedule specified
below.

The supplier will plow/remove snow from the employee parking,
the customer parking, the truck/loading dock, the
sidewalks/steps/ramps, and the sidewalks abutting the
property. The entire area is an estimated 9, 000 square
footage. The supplier will apply salt/sand only when
requested by the USPS . . .

[Dkt. No. 37-2 at 17-18.]

Despite
the express terms of the contract, Roman consistently removed
snow and applied salt and sand without USA's request,
even where less than two inches of snow had accumulated.
Charlene Perry (“Perry”), the Officer-in-Charge
of the Post Office, explained that “during [my] four
years as [Officer In Charge] of the [Post Office], I did not
direct, nor to my knowledge [did] anyone else on my staff
direct, Roman as to how to complete the contract and remove
snow and/or place ice and/or sand.” [Dkt. No. 28-2 at
4.] Michelle Laflamme (“Laflamme”), a Post Office
employee, confirmed that Roman plows and treats the Post
Office grounds whenever it snows, without request from her.
[Dkt. No. 37-4 at 60-65.]

While
Roman regularly treated the Post Office grounds, Roman did
not warn Post Office patrons of dangerous snow and ice
conditions, and had “no responsibility to place warning
signs or cones to warn pedestrians of icy conditions.”
[Dkt. No. 37-3 (Perry Deposition) at 70-71 (“[T]o your
knowledge, did the USPS give any sort of responsibility to
any other party, or Roman, regarding putting warning signs or
any type of warnings for customers at the Gales Ferry post
office? A. No.”)].

USA and
Roman have not modified in writing the terms of their
contract to reflect Roman's general practice of treating
the Post Office grounds for winter weather conditions without
request. In fact, Perry had not reviewed the winter weather
provision of the contract prior to February 4, 2014. [Dkt.
No. 37-3 (Perry Deposition) at 61 (“. . . you had not
reviewed the contract marked as Exhibit D before the February
4, 2014 incident? A. Correct.”).] However, USA and
Roman have since reviewed and modified in writing other terms
of their contract. [Dkt. No. 37-2 at 2, 4 (written
modifications dated 10/1/14).]

It
snowed five inches on February 3, 2014, but did not snow on
February 4, the day Szydlo fell. [Dkt. No. 28-4 at 2.] A
letter from a Consulting Meteorologist states:

The low of 19 degrees [on February 4, 2014] occurred during
the predawn hours. The high that afternoon was about 35
degrees. At the time in question (approximately 9:40am on
February 4, 2014), weather conditions in Gales Ferry included
a clear sky, a temperature of 27 degrees, wind from the
northeast at 8 miles per hour, and visibility of about 7.0
miles. There was about 4.0” of snow present on
untreated, undisturbed ground surfaces. It is likely that
there were also some icy spots present on untreated surfaces.
These would have begun forming the previous afternoon.

[Dkt. No 28-5 at 2.]

Roman's
itemized bill indicates Roman plowed the Post Office property
once on February 4, 2014, administered sand once, and
administered one “walk and ice” treatment.”
[Dkt. No 28-4 at 2.] The bill does not indicate what time
Roman treated the Post Office sidewalk, but Perry's
Affidavit indicates “Roman had finished applying the
snow melt and plowing before the accident occurred.”
[Dkt. No. 28-2 at 5.] Laflamme confirmed the Post Office
grounds had already been plowed and treated with Ice Melt
when she arrived at work around 8:30 am on February 4. [Dkt.
No. 37-4 at 60, 67.]

On the
morning of February 4, 2014, Szydlo entered the Post Office
as a customer, and at 9:40am she exited the Post Office,
slipped, and fell on the adjacent sidewalk, which Szydlo
alleges was covered in ice. [Dkt. No. 31 at 2.] Plaintiff
sustained injuries including:

(a) Spiral fractural of the lateral malleolus of the right
ankle;

(b) Avulsion fracture of the medical malleolus of the right
ankle;

(c) Subluxation of the talus;

(d) Comminuted fracture with bleeding;

(e) Fear of the development of early onset traumatic
...

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